Bit Parts

Eleventh Circuit Interprets “Licensed Indicia”

The U.S. Court of Appeals for the Eleventh Circuit decided that an agreement visual artist Daniel Moore entered into with the University of Alabama didn't prevent him from including Crimson Tide uniforms in paintings, prints and calendars he made of historical scenes of the university's football team. The University of Alabama v. New Life Art Inc., 09-16412. The university had pointed to the broad-based term “licensed indicia” in a 1995 contract Moore signed to make visual renderings for use in school products. But the Eleventh Circuit found: “Other sections refer to 'licensed indicia' being used 'on' products. Another provision instructs that Moore 'shall not contract with any party for the production or application of Licensed Indicia by that party' without authorization. It seems unlikely that uniforms in a painting would be 'produced' or 'applied.' This language implies that the parties intended 'licensed indicia' to refer to the packaging or labels placed upon products, rather than uniforms depicted within the content of a painting, print, or calendar.'” In any case, the appeals court emphasized regarding the university's trademark claims: “[W]e conclude that the First Amendment interests in artistic expression so clearly outweigh whatever consumer confusion that might exist on these facts that we must necessarily conclude that there has been no violation of the Lanham Act with respect to the paintings, prints, and calendars.”

Humor Website Qualifies as “Internet Service Provider”

The U.S. District Court for the Southern District of New York has followed the Second Circuit's liberal definition of “Internet Service Provider” for purposes of safe-harbor protection under the Digital Millennium Copyright Act. Obodai v. Demand Media Inc., 11 Civ. 2503. The plaintiff sued after a non-party posted his copyrighted work on the humor website, Cracked.com. District Judge P. Kevin Castel observed: “While plaintiff notes that the defendant and its website publish content, and argues that this weighs against classification as a service provider, [Viacom International Inc. v. YouTube Inc., 676 F.3d 19 (2d Cir. 2012)] concluded that a service provider under section [17 U.S.C.] 512(k)(1)(B) may provide a wide range of services. This included posting and syndicating videos that could be accessed by third-party viewers.” Judge Castel added: “Because the defendant operates a website that permits users to post and share materials, it falls within the broad definition of a service provider under section 512(k)(1)(B).”

A federal magistrate from the U.S. District Court for the Southern District of Georgia recommended summary dismissal of a copyright infringement suit against Sony Music Entertainment and LaFace Records brought over a song by the defendants' artist Usher. Robbins v. Raymond, CV411-193. Finding no substantial similarity, Magistrate G.R. Smith made a critical distinction between pro se plaintiff Kelvin Robbins' rap song “Comein Over” and Usher's R&B composition “Hey Daddy (Daddy's Home).” According to Magistrate Smith: “Most of the musical interest in Robbins's song is created in the rapped verses via rhyming and wordplay.” The magistrate continued: “In stark contrast, ' Usher's melody, which is varied and often highly contoured, is a vehicle for highlighting his skills as a singer. The pacing of the melody and lyrics enables Usher to profile his abilities with vocal runs and turns. Furthermore, Plaintiff's chorus melody and rapped verses are very simple, which is the polar opposite of the dense vocal harmonies and the complex interplay between the lead and background vocals in the Challenged Song.”

Songwriter Royalties Aren't Immune from Attorney Fees Levy

The U.S. Court of Appeals for the Ninth Circuit decided that KISS band members Gene Simmons and Paul Stanley and their affiliated companies could levy the songwriting royalties of former group member Vincent Cusano to enforce an attorney fees award obtained against Cusano. Cusano v. Klein, 06-56871. Cusano, who was in the band in the early 1980s, had lost a court battle with KISS over ownership of songs he wrote while in the band. The Ninth Circuit noted, in an unpublished opinion: “Cusano argues that his song royalties are protected from levy by federal and state law, which shelter from garnishment 75[%] of an individual's weekly 'earnings.' See 15 U.S.C. '1673(a); Cal. Code Civ. P. '706.050. The relevant statutes define 'earnings' as compensation for personal services. See 15 U.S.C. '1672(a); Cal. Code Civ. P. '706.011(a). Cusano has not shown that his royalties are compensation for personal services, so the district court did not abuse its discretion by permitting [the KISS parties] to levy on 100[%] of those royalties.”

Eleventh Circuit Interprets “Licensed Indicia”

The U.S. Court of Appeals for the Eleventh Circuit decided that an agreement visual artist Daniel Moore entered into with the University of Alabama didn't prevent him from including Crimson Tide uniforms in paintings, prints and calendars he made of historical scenes of the university's football team. The University of Alabama v. New Life Art Inc., 09-16412. The university had pointed to the broad-based term “licensed indicia” in a 1995 contract Moore signed to make visual renderings for use in school products. But the Eleventh Circuit found: “Other sections refer to 'licensed indicia' being used 'on' products. Another provision instructs that Moore 'shall not contract with any party for the production or application of Licensed Indicia by that party' without authorization. It seems unlikely that uniforms in a painting would be 'produced' or 'applied.' This language implies that the parties intended 'licensed indicia' to refer to the packaging or labels placed upon products, rather than uniforms depicted within the content of a painting, print, or calendar.'” In any case, the appeals court emphasized regarding the university's trademark claims: “[W]e conclude that the First Amendment interests in artistic expression so clearly outweigh whatever consumer confusion that might exist on these facts that we must necessarily conclude that there has been no violation of the Lanham Act with respect to the paintings, prints, and calendars.”

Humor Website Qualifies as “Internet Service Provider”

The U.S. District Court for the Southern District of New York has followed the Second Circuit's liberal definition of “Internet Service Provider” for purposes of safe-harbor protection under the Digital Millennium Copyright Act. Obodai v. Demand Media Inc., 11 Civ. 2503. The plaintiff sued after a non-party posted his copyrighted work on the humor website, Cracked.com. District Judge P. Kevin Castel observed: “While plaintiff notes that the defendant and its website publish content, and argues that this weighs against classification as a service provider, [ Viacom International Inc. v. YouTube Inc. , 676 F.3d 19 (2d Cir. 2012)] concluded that a service provider under section [17 U.S.C.] 512(k)(1)(B) may provide a wide range of services. This included posting and syndicating videos that could be accessed by third-party viewers.” Judge Castel added: “Because the defendant operates a website that permits users to post and share materials, it falls within the broad definition of a service provider under section 512(k)(1)(B).”

A federal magistrate from the U.S. District Court for the Southern District of Georgia recommended summary dismissal of a copyright infringement suit against Sony Music Entertainment and LaFace Records brought over a song by the defendants' artist Usher. Robbins v. Raymond, CV411-193. Finding no substantial similarity, Magistrate G.R. Smith made a critical distinction between pro se plaintiff Kelvin Robbins' rap song “Comein Over” and Usher's R&B composition “Hey Daddy (Daddy's Home).” According to Magistrate Smith: “Most of the musical interest in Robbins's song is created in the rapped verses via rhyming and wordplay.” The magistrate continued: “In stark contrast, ' Usher's melody, which is varied and often highly contoured, is a vehicle for highlighting his skills as a singer. The pacing of the melody and lyrics enables Usher to profile his abilities with vocal runs and turns. Furthermore, Plaintiff's chorus melody and rapped verses are very simple, which is the polar opposite of the dense vocal harmonies and the complex interplay between the lead and background vocals in the Challenged Song.”

Songwriter Royalties Aren't Immune from Attorney Fees Levy

The U.S. Court of Appeals for the Ninth Circuit decided that KISS band members Gene Simmons and Paul Stanley and their affiliated companies could levy the songwriting royalties of former group member Vincent Cusano to enforce an attorney fees award obtained against Cusano. Cusano v. Klein, 06-56871. Cusano, who was in the band in the early 1980s, had lost a court battle with KISS over ownership of songs he wrote while in the band. The Ninth Circuit noted, in an unpublished opinion: “Cusano argues that his song royalties are protected from levy by federal and state law, which shelter from garnishment 75[%] of an individual's weekly 'earnings.' See 15 U.S.C. '1673(a); Cal. Code Civ. P. '706.050. The relevant statutes define 'earnings' as compensation for personal services. See 15 U.S.C. '1672(a); Cal. Code Civ. P. '706.011(a). Cusano has not shown that his royalties are compensation for personal services, so the district court did not abuse its discretion by permitting [the KISS parties] to levy on 100[%] of those royalties.”